“Sudden passion must arise at the time of the offense and cannot result solely from former provocation.”
How later courts described this case
- “Sudden passion must arise at the time of the offense and cannot result solely from former provocation.”
Written by the judges who cited it.
The opinion
Opinion issued January 31, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-01052-CR
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JERRY BELTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Case No. 1257810
MEMORANDUM OPINION
Appellant Jerry Belton pleaded guilty without an agreed sentencing
recommendation to the charge that he murdered his wife. See TEX. PENAL CODE
ANN. § 19.02 (West 2011). He also pleaded true to an enhancement allegation that
he had been convicted previously of the second-degree felony offense of attempted
murder. The trial court ordered that a presentence investigation report be prepared.
After considering the PSI report, the trial court sentenced him to life in prison.
In his sole issue on appeal, Belton argues that he was under the immediate
influence of a sudden passion when he murdered his wife, and therefore the court
should have sentenced him within the statutory range for a second-degree felony
rather than a first-degree felony. See id. § 19.02(d). We affirm.
Background
According to Belton, who is deaf and mute, he traveled from his home in
Louisiana over the Easter weekend in 2010 to visit with his estranged wife,
Chandra, and his teenaged daughter, J.B. Belton said he had been separated from
Chandra because of her prior infidelity, but she had asked him to visit to determine
if reconciliation was possible. His family in Louisiana advised him not to make
the trip and warned him that the “relationship was too upsetting and volatile.” He
later told police investigators that he brought a gun with him to Houston “for
protection” against Chandra’s “new boyfriend.”
Belton arrived at his wife’s home on Friday night, and that evening he “was
having a good time.” There was “a big dinner” and he began to believe that the
family “could put our live[s] back together.” The next day, however, he became
disturbed when Chandra took J.B. shopping without him and returned after
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midnight, “too drunk to talk.” Belton was “very upset,” believing that Chandra
had endangered their daughter.
The next day, Chandra was “ugly” to Belton during church services, and she
talked and argued with another man. When they returned from church they
discovered some spoiled food, so Belton and Chandra left the house in her sports
utility vehicle, ostensibly to go to the grocery store. J.B. told investigators that her
parents were arguing about her mother’s new boyfriend when they left the house.
In his written statement to the court, Belton described the events that
followed:
We left in my car. I hoped it would be a good chance to talk
about what happened the night before when she came home drunk. I
tried to talk to he[r] about it but while we were sig[n]ing she got a cell
phone call. She turned away from me and began talking to another
man. I could see her in the view mirror and I could lip read enough to
know what she was saying
I could not believe she would get me to come to Houston only
to be this way with me. I bec[a]me enraged. I couldn’t think straight.
I remember[e]d that I had a pistol under my car seat. I pulled on a
parking lot. I got the gun in a state of anger.
Belton drove into the empty parking lot of Big H Auto Auction, where he had once
worked. He told police investigators that “his wife hit him next to his ear and he
became angry. When his wife saw the gun he had inside his waistband, she got out
and ran to the back of her SUV.” He felt “crazy anger,” and then he shot and
killed Chandra.
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Three witnesses gave statements to police about the murder. S. Garrison
was working that afternoon as a security guard at Big H Auto Auction. She saw a
sports utility vehicle drive to the back of the parking lot. The vehicle was parked
for five to eight minutes, and then a man and a woman got out and walked a short
distance away. Garrison heard the woman scream and saw the man shoot her once.
After the woman fell to the ground, the man shot her two more times. Garrison
called the police, and the man drove away, leaving the woman there. Z. Davis was
also working as a security guard that afternoon, and he told an investigator that it
appeared to him that the couple was arguing inside the vehicle. He saw the man
shoot the woman three times before driving away. A third witness was working
approximately 35 yards away and heard three gunshots.
Belton returned to Chandra’s home, parked her SUV in the driveway,
handed her keys to their daughter, and left in his car. Around 5:00 p.m., Harris
County Sheriff’s deputies found Chandra lying in the parking lot with a large pool
of blood beneath her head. She was pronounced dead at the scene. An autopsy
report showed that Chandra had suffered five bullet wounds—two to her head, one
to her breast, and one each to her left and right hands and wrists. The medical
examiner concluded that her death was a homicide caused by multiple gunshot
wounds. Sheriff’s deputies investigating the murder scene found no shell casings,
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but they did find Chandra’s mobile phone, which had broken into three pieces.
They were able to recover the following three text messages:
She’s mine now sorry u lost
I told u im hear in Htown ur city stop calling my wife
I c ur picture on my wife phone pls stop calling her.
The PSI report characterized these messages as having “appeared to have been sent
from one male to another.”
Belton was arrested in Louisiana, and he later confessed to shooting Chandra
several times. He also told police that this was the third time he had discovered
Chandra cheating on him, and “he had become used to it.” He pleaded guilty to
murder without an agreed recommendation as to punishment, and the trial court
ordered the preparation of a PSI report.
At the punishment hearing, Belton requested that the trial judge take judicial
notice of his written statement, which was included in the PSI report. The only
evidence formally offered and admitted at the hearing was a group of family
photographs of Chandra. The PSI report included information about Belton’s prior
offenses. In 1987, when Belton was 28 years old, he was convicted of two counts
of aggravated battery for stabbing a woman 11 times with a kitchen knife and for
stabbing an 11-month-old baby four times with a large kitchen knife and breaking
his arm. In 1988, Belton was convicted of attempted second-degree murder for
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stabbing a nurse six times with a large knife. The PSI report also included
numerous statements, many nearly identical, from Belton’s family and friends
describing Chandra as selfish and greedy, indicating their support for Belton, and
stating that Belton was “raised as a God fearing man by his grandmother,” that the
accusations against him were “not in his character,” and that he “would not
purposely hurt her.” The letters also indicated that Belton had “moved on with his
life” and was in a relationship with a woman who lived in Louisiana.
The trial court sentenced Belton to life in prison, and this appeal ensued.
Analysis
On appeal, Belton contends that he established “as a matter of law” that
Chandra’s murder occurred while he was under the immediate influence of sudden
passion, and therefore his offense was a second-degree felony instead of a first-
degree felony. This is a challenge to the legal sufficiency of the evidence to
support the trial court’s finding to the contrary in the context of sentencing. In
reviewing a criminal defendant’s legal sufficiency challenge to a negative finding
on a sentencing issue for which the defendant had the burden of proof, we first
examine the record for evidence that supports the negative finding, and, if no
evidence supports the negative finding, then we examine the entire record to
determine whether it establishes the contrary proposition as a matter of law. Smith
v. State, 355 S.W.3d 138, 148 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).
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At the punishment phase of a murder trial, the offense will be reduced from
a first-degree felony to a second-degree felony if the defendant affirmatively
proves by a preponderance of the evidence that “he caused the death under the
immediate influence of sudden passion arising from an adequate cause.” TEX.
PENAL CODE ANN. § 19.02(d); see also Hernandez v. State, 127 S.W.3d 206, 211–
12 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). “‘Sudden passion’ means
passion directly caused by and arising out of provocation by the individual killed
or another acting with the person killed which passion arises at the time of the
offense and is not solely the result of former provocation.” TEX. PENAL CODE
ANN. § 19.02(a)(2). “‘Adequate cause’ means cause that would commonly
produce a degree of anger, rage, resentment, or terror in a person of ordinary
temper, sufficient to render the mind incapable of cool reflection.” Id.
§ 19.02(a)(1).
“Neither ordinary anger nor fear alone raises an issue on sudden passion
arising from adequate cause.” Moncivais v. State, No. 01-09-01131-CR, 2011 WL
2936360, at *2 (Tex. App.—Houston [1st Dist.] July 21, 2011, pet. ref’d). Rather,
such anger or fear must render the defendant incapable of cool reflection. See
Gonzales v. State, 717 S.W.2d 355, 357 (Tex. Crim. App. 1986). “A defendant
must prove that the homicide occurred while the passion still existed and before
there was reasonable opportunity for the passion to cool.” Moncivais, 2011 WL
7
2936360, at *3 (citing McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App.
2005)). “Anticipation of an event and preparation of a response indicates a
defendant had time to deliberate over an action and did not act under the
immediate influence of sudden passion.” Id. Evidence of premeditation is
sufficient to support a finding of no sudden passion. Nance v. State, 807 S.W.2d
855, 861 (Tex. App.—Corpus Christi 1991, pet. ref’d).
The PSI report is part of the appellate record, and there were no objections to
it at the sentencing hearing. The record shows that Belton and Chandra were
separated, and both had become involved in other relationships. Belton drove from
Louisiana to Houston with a gun. Belton told investigators he had become used to
Chandra’s infidelity. He knew of her extramarital affair, and the text messages
found on Chandra’s phone suggested some direct communication between Belton
and Chandra’s boyfriend. Belton left the house with Chandra, drove her to an
empty parking lot, and shot her multiple times, including twice after she had fallen
to the ground. He then drove to his wife’s home, gave her keys to their daughter,
retrieved his car, and returned to Louisiana.
Belton’s actions, specifically in driving from Louisiana to Houston with a
gun and in taking Chandra to a secluded location before killing her, support an
inference of preparation and premeditation, and therefore the record supports the
trial court’s negative finding on the issue of sudden passion. Apart from his
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request that the trial court take judicial notice of his written statement, Belton
presented no evidence at the punishment hearing to substantiate a claim of sudden
passion. His contention that he became angry about Chandra’s phone conversation
while they were in the car was insufficient as a matter of law to establish an
adequate cause. He already knew that she was having an extramarital affair. See
Hernandez, 127 S.W.3d at 213 (“Sudden passion must arise at the time of the
offense and cannot result solely from former provocation.”); cf. Bradshaw v. State,
244 S.W.3d 490, 503 (Tex. App.—Texarkana 2007, pet. ref’d) (holding that
estranged spouse’s discovery of extramarital relationship would not commonly
produce in a person of ordinary temper a degree of anger, rage, resentment, or
terror sufficient to render the mind incapable of cool reflection).
Having found that the trial court’s negative finding is supported by the
record, and that there is no evidence to support the contrary position, we conclude
that the evidence is legally sufficient to support the sentence, and we overrule
Belton’s sole issue. See Smith, 355 S.W.3d at 148.
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Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Justices Keyes, Massengale, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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